The Karnataka High Court dismissed two miscellaneous first appeals against rejection of temporary injunction applications in a property dispute, declining to interfere with the trial court's discretionary order that found no prima facie case, but observed that developments during pendency of suit would remain subject to final outcome.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2023
BEFORE
THE HON’BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO.5040 OF 2022 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.5058 OF 2022 (CPC)
IN M.F.A.5040/2022:
BETWEEN:
REP. BY HIS GPA HOLDER SRI B.N. DAYANANDA RAO.
…APPELLANTS
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AND:
RESPONDENTS NO.1 TO 3 ARE R/AT 36/4, VADDARAPALYA MAIN ROAD, VALAGERAHALLI, KENGERI HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 060.
5 . SRI. L. ASHWATHA, S/O LATE CHIKKALAKSHMANA, AGED ABOUT 67 YEARS, R/AT 3, 1ST FLOOR, HOOVADIGARA BEEDI, CHICKPET CROSS, BENGALURU - 560 053.
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6 . SRI. K.B. SHIVAPRAKASH, S/O K.S. BASAPPA, AGED ABOUT 53 YEARS, R/AT 16, "INDIRA NILAYA" 2ND 'A' CROSS, NGEF LAYOUT, NAGARABHAVI, BENGALURU - 560 072.
7 . SMT. R. DEEPA CHRISTY, AGED MAJOR, D/O DR. D.S. RAJAN, R/AT 21, 4TH CROSS, PADMANABHA NAGARA, AIRPORT ROAD COIMBATORE, TAMIL NADU - 641 014.
8 . SRI. R. BALACHANDRA, S/O LATE RAJANNA, AGED ABOUT 38 YEARS, PROPRIETOR. M/s. JAYANTH SRI BUILDERS, HAVING ITS OFFICE AT NO.36, 7TH CROSS, 1ST MAIN, NEAR M.G.V. SCHOOL, SANJEEVINI NAGARA, MOODALAPALYA, BENGALURU - 560 072.
9 . M/s. RELIANCE PROJECT AND PROPERTY MANAGEMENT SERVICES LTD., LOCAL OFFICE AT 2ND FLOOR, T.T.M.C. BUS STAND, VIJAYANAGARA, BENGALURU - 650 040.
REP. BY AUTHORIZED SIGNATORY MR. UMESH PRABHU.
…RESPONDENTS
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THIS M.F.A. 5040/2022 IS FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 31.05.2022 PASSED ON I.A.NO.1/21 IN O.S.NO.5685/2021 ON THE FILE OF THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING I.A.NO.1/21 FILED UNDER ORDER XXXIX RULES 1 AND 2 R/W SECTION 151 OF CPC.
IN M.F.A.5058/2022:
BETWEEN:
REP BY HIS GPA HOLDER SRI B N DAYANANDA RAO.
[BY SRI. VIVEK S.REDDY, SENIOR COUNSEL A/W SRI. K.H.THIMMAIAH FOR DIKSHITH ASSOCIATES, ADV.,]
AND:
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RESPONDENTS NO.1 TO 3 ARE R/AT 36/4, VADDARAPALYA MAIN ROAD, VALAGERAHALLI, KENGERI HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 060.
4 . SRI. M.RAMAIAH, S/O LATE MUNIANJINAPPA @ MUNISWAMAPPA, AGED ABOUT 84 YEARS, R/AT 36/4, VADDARAPALYA MAIN ROAD, VALAGERAHALLI, KENGERI HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 060.
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AIRPORT ROAD COIMBATORE, TAMIL NADU - 641 014.
8 . SRI. R. BALACHANDRA, S/O LATE RAJANNA, AGED ABOUT 38 YEARS, PROPRIETOR. M/s. JAYANTH SRI BUILDERS, HAVING ITS OFFICE AT NO.36, 7TH CROSS, 1ST MAIN, NEAR M.G.V. SCHOOL, SANJEEVINI NAGARA, MOODALAPALYA, BENGALURU - 560 072.
9 . M/s. RELIANCE PROJECT AND PROPERTY MANAGEMENT SERVICES LTD., LOCAL OFFICE AT 2ND FLOOR, T.T.M.C. BUS STAND, VIJAYANAGARA, BENGALURU - 650 040.
REP. BY AUTHORIZED SIGNATORY MR. UMESH PRABHU.
…RESPONDENTS
[BY SRI. N.NANJUNDA SWAMY, ADVOCATE FOR C/R1 TO 3 AND R8 ON I.A.2; NOTICE TO R4 TO R7 ARE DISPENSED WITH V/O DATED 22.11.2022; NOTICE DISPENSED WITH TO R9]
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC., AGAINST THE ORDER DATED 31.05.2022 PASSED ON I.A.NO.2/21 IN O.S.NO.5685/2021 ON THE FILE OF THE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING I.A.NO.2/21 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.11.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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COMMON JUDGMENT
Challenging impugned order dated 31.05.2022 passed by XXXIV Addl. City Civil and Sessions Judge, Bengaluru (CCH-35), in O.S.No.5685/2021 on I.A.no.I/2021 and I.A.no.II/2021 filed under
Order XXXIX Rules 1 and 2 of CPC, these appeals are filed. Since both appeals arise out of same suit and common order, they were heard together and disposed of by common judgment.
reliefs:
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consideration: (1) Whether plaintiffs have made out a prima facie case?
consideration:
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applications with costs by answering points in negative.
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as per document no.4156/1987-88 dated 15.09.1987 from Smt.Munilakshmamma and same was recited in plaintiffs' sale deed.
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obtain any document about delivery of possession. Thus, plaintiff no.1 continued in possession of entire 'A' schedule property.
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G.V.Sridhara East to West to an extent of 76 ft. and 100 ft. North to South in Sy.no.36/4 by citing document no.7740/2002-03 as source of title. Thereafter plaintiffs' had filed O.S.no.5523/2020 for restraining defendants no.7 and 8 herein from claiming right under alleged gift deed 09.12.2016 and interfering with plaintiffs' possession. It was submitted that trial Court had granted an ex parte ad interim order of status quo in said suit.
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of M.Ramaiah on 08.07.2002. Even measurements shown in said document was in square feet i.e., 76½ X 100, but subsequent sale deed in favour of L.Ashwath, extent stated was in guntas. Further source of title cited by M.Ramaiah was document no.7740 of 200203 in respect of 07 guntas, whereas in subsequent sale deeds executed in favour of L.Ashwath, K.B.Shivaprakash and R.Deepa Christy, extent mentioned was 7½ guntas. Even thereafter M.Ramaiah executed alleged gift deed in favour of his daughter - defendant no.1 to an extent of 7,600 sq. ft. would be apparently fraudulent.
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defendants. It was submitted that defendant no.7 was relying upon two revenue documents viz., mutation effected by revenue authorities and khata issued by BBMP. Whereas khata was issued based on alleged gift deed. It was also pointed out that khata relied upon by defendant no.7 was same as khata no.3336/3024/36/4, though ward number mentioned was different. It was submitted that in view of above serious irregularities and discrepancies, genuinenity of defendants' claim would require to be established during trial and rejection of application would amount to refusal to maintain status quo during pendency of suit calling for interference. It was submitted that if nature of suit schedule properties were not protected till disposal of suit, even if plaintiff succeeded, trial Court would not be in a position to do complete justice.
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proposition that grant of temporary injunction requirement: (1) Existence of prima facie case (2) Need for protection of plaintiff right (3) Clear possibility of irreparable injury.
XXX
10. Order XXXIX of the Code of Civil Procedure envisions as to temporary injunctions and interlocutory orders. Rule 1 thereof provides:
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or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
11. Rule 1 of Order XXXIX, thus, says and envisages that in the even in a suit it is by affidavit or otherwise proved that any property, which is in dispute in a suit, is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in an execution of a decree or that the defendant threatens or intends to remove or dispose-off his property with a view to defrauding his creditors or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property, which is in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act or make such other order for the purpose
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of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury until the disposal of the suit or until further orders. It is necessary to be seen that if the property in dispute is tried to be wasted, damaged, alienated, sold, disposed-off or there are chances of dispossessing the plaintiff from any property, which is in dispute in the suit and/or which may cause injury to the plaintiff concerning any property, which is in dispute in the suit, the Court may grant the temporary injunction . So, grant of temporary injunction is not to put an end to the litigation, but it is a beginning of the litigation and grant of the temporary injunction is aiming at preserving the property, which is in dispute in the suit because if the temporary injunction is refused to be granted, it would pave way for either of the parties before the Court to alienate, sell, dispose of and/or change the nature of the property, which is in dispute in the suit and in such situation the purpose of litigation would be futile and/or endless for both the parties. Thus, as can be professed from the Rule 1 of Order XXXIX, grant of temporary injunction is to prevent damage or wastage to 'any property' which is in dispute in the suit.
20. On other hand, Sri. Nanjundaswamy, learned counsel for
defendants no.1 to 3 and 8 and Sri K.Vijaya Kumar, learned counsel for defendant no.7 (in MFA no.5058/2022), sought to support impugned order and opposed appeal.
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and 8 that present suit filed by plaintiff no.1 was not maintainable by virtue of Order II Rule 2 of CPC. It was submitted that plaintiff no.1 had earlier filed O.S.no.5523/2020 through plaintiff no.2 as General Power of Attorney ('GPA' for short) holder against defendants no.7 and 8 to restrain them from interfering with plaintiffs' peaceful possession and enjoyment of suit property. In said suit, I.A.no.1 was filed under Order XXXIX Rules 1 and 2 of CPC for temporary injunction restraining defendants no.7 and 8 from interfering and dispossessing plaintiff no.1 came to be dismissed by order dated 22.03.2021. Appeal in MFA no.2800/2021 filed against said order was pending. In view of pendency of said suit and appeal, present suit filed by plaintiff no.1 would not be maintainable.
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defendants constructed building would establish that plaintiff no.1 was not in possession. Further, defendants had entered appearance in previous suits and filed written statement producing photographs showing progress of their construction upto second floor.
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which would not translate into extent claimed by plaintiffs. It was thus submitted that since plaintiffs had failed to establish existence of site no.1, even application for temporary injunction against nonalienation would not be tenable and submitted that same was rightly rejected by trial Court. In support of his submission, learned counsel relied upon decision in case of Kethaki Vs. Kamalamma and others1 .
1 2021 (1) KCCR 508
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West 140 ft. and North to South 60 ft., wherein description of northern boundary was ' remaining portion of property belonging to vendor of plaintiff' .
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respondent no.7 - Deepa Christy under registered sale deed dated 02.08.2006. Even alleged compromise petition is in respect of southern portion of land and it is thus admitted that northern portion of land as belonging to G.V.Sridhara. Hence, plaintiffs have not made out prima facie case and had unnecessarily plaintiffs arrayed defendant no.7 as party to suit.
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since 1998 and suit filed after two decades was hopelessly barred by limitation. It was further submitted that failure of plaintiffs to produce any electricity bill for past 19 years to obtain khata certificate from erstwhile TMC, Kengeri and present BBMP would vindicate plaintiffs' case as misconceived.
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schedule to said compromise petition, there is clear mention of building. It was submitted that boundaries and existence of present suit property was not disputed either in O.S.no.9113/2001 or in O.S.no.3985/2002.
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"Whether impugned order passed by trial Court rejecting I.As.no.I and II filed by plaintiffs under Order XXXIX Rules 1 and 2 of CPC calls for interference?"
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deed dated 13.03.1995, acquisition proceedings were initiated by BDA and same is not referred to in sale deed. But, in plaint schedule, boundary description of northern side was remaining portion of same property (now acquired by BDA). From acknowledgment dated 30.03.2002 issued by Chief Officer, Kengeri Municipality for change of khata, it noted that application was filed after 06 year and 11 months after purchase. No document was furnished to establish that same was considered. Even fact that plaintiff had failed to produce any document to establish that defendants had acted in terms of compromise in O.S.no.3985/2002 and delivered possession. It also referred to pleading about defendants putting up construction of basement, ground, first, second and third floors of which basement and ground floor were completed and leased to defendant no.9, to answer point no.1 in negative. Consequently, by answering point no.2 in negative, impugned order is passed.
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Math Samsthan and Another vs. Shrimad Sudhindra Thirtha
Swamy and Another2 , has held that no order of temporary injunction can be granted unless prima facie case was established even if plaintiff succeeded in establishing balance of convenience and irreparable loss and injury. Therefore, even though trial Court has not given specific finding on point no.3, same has deemed to be answered in negative.
2 2010 (1) SCC 689
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8 herein from claiming right under alleged gift deed 09.12.2016 and from interfering with plaintiffs' possession and in said suit their application for temporary injunction was rejected with observation that there was dispute about title. And appeal preferred by plaintiffs against said order in MFA.no.2800/2021 was still pending. Therefore, present suit filed during pendency of said proceedings was barred under Order II Rule 2 of CPC. Further, assertion by plaintiffs about defendants putting up construction prima facie indicated that plaintiffs were not in possession and failure of plaintiffs to produce document to establish existence of schedule ‘A’ property (present suit schedule property) justified finding of trial Court.
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explanation for not making efforts to get khata changed from date of sale i.e. 13.03.1995 upto year 2002 requires to be considered, even when description in ‘A’ schedule of plaint refers to khata no.224.
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of compromise decree in O.S.no.3985/2002 were complied. Further, relief of mandatory injunction sought herein apart from alternative prayer for possession would weigh against holding plaintiffs to have established prima facie case.
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order passed by trial Court in appeal under Order XLI Rule 1 (r) of CPC, Hon’ble Supreme Court in case of Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan3 , has held:
“20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the appellate court could not have interfered with the exercise of discretion by the learned trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The appellate court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the appellate court was wrong in its conclusions what is sought to be emphasised is that as long as the view of the trial court was a possible view the appellate court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd. [Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727]
21. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation: ( Wander Ltd. case [ Wander Ltd. v. Antox India (P) Ltd. , 1990 Supp SCC 727] , SCC p. 533)
“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge.
3 (2013) 9 SCC 221,
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In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) (P) Ltd. v. Pothan Joseph [AIR 1960 SC 1156 : (1960) 3 SCR 713] : (AIR p. 1159, para 9)
‘9. … These principles are well established; but, as has been observed by Viscount Simon in Osenton (Charles) & Co. v. Johnston [1942 AC 130: (1941) 2 All ER 245 (HL)] : (AC p. 138)
“… The law as to the reversal by a Court of Appeal of an order made by [a] Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well-settled principles in an individual case.”’
The appellate judgment does not seem to defer to this principle.
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Court was not correct in interfering with the order passed by the learned trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Our disagreement with the view of the Division Bench is purely on the ground that the manner of exercise of the appellate power is not consistent with the law laid down by this Court in Wander Ltd. [ Wander Ltd. v. Antox India (P) Ltd. , 1990 Supp SCC 727] Accordingly, we set aside the order dated 9- 10-2012 [ Khushnuma Ibrahim Khan v. Asadullah Khan , (2012) 6 Bom LR 3502] passed by the Appellate Bench of the Bombay High Court and while restoring the order dated 13-4-2012 of the learned trial Judge we request the learned trial Judge, or such other court to which the case may, in the meantime, have been transferred to dispose of the main suit as expeditiously as its calendar would permit with the expectation that the same will be possible within a period of six months from the date of receipt of this order. The appeal shall stand disposed of in terms of the above.”
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ORDER
GRD
Sd/-
JUDGE
2 issues framed by the court
Whether the trial court's rejection of temporary injunction applications under Order XXXIX Rules 1 and 2 CPC calls for interference in appeal.
Whether the appellants/plaintiffs had established a prima facie case entitling them to a temporary injunction.
Colour shows how this judgement treated each authority
D.M. Doddamuniyappa and Others v/s Krishnappa and OthersReferred¶19
2021 (2) KLR 548
Shree Samsthana Mahabaleshwara Deva Gokarna and Others v/s U.F.M. Ananthraj and OthersReferred¶19
ILR 2021 Kar 637 · Who else cites this
Balwant Singh and Another v/s Daulat Singh (Dead) By LRs. and OthersReferred¶19
(1997) 7 SCC 137 · Who else cites this
Prahlad Pradhan and Others v/s Sonu Kumhar and OthersReferred¶19
(2019) 10 SCC 259 · Who else cites this
Shivaraj and Another v/s A.Rangaswamy and OthersReferred¶19
2021 (3) KCCR 2699
Kethaki Vs. Kamalamma and othersReferred¶24
2021 (1) KCCR 508
Kashi Math Samsthan and Another vs. Shrimad Sudhindra Thirtha Swamy and AnotherReferred¶37
2010 (1) SCC 689 · Who else cites this
Mohd. Mehtab Khan v. Khushnuma Ibrahim KhanFollowed¶48
(2013) 9 SCC 221 · Who else cites this
Wander Ltd. v. Antox India (P) Ltd.Referred¶48
1990 Supp SCC 727 · Who else cites this
3 provisions across 1 enactments
Sri. R. Sadasivan
Sri. B.N. Dayananda Rao
Smt. G.R. Uma
Sri. Dhanush V.S.
Miss Yamini V.S.
Sri. M.Ramaiah
Ravi V. Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
